XII. How Examinations, &c. to be kept, and Right of Party to have Copies, &c. The justice should take due care over the examinations, information, and recognizances, until they be delivered over to the proper officer, in pursuance of the 7 Geo. IV., c. 64, s. 2 & 3, ante, 97. It is discretionary for him to let any one, not properly authorised, see them: even the party accused has no right to demand a copy of the depositions, though in cases of treason or felony he must be put in possession of a list containing the names of the witnesses. R. v. Holland, 4 T. R. 691; 1 Phill. Ev. 7 ed. 427, 8. A mandamus will not lie to compel a magistrate to produce depositions taken before him on a charge of felony, for the purpose of founding an indictment for perjury against the deponents: the magistrate must be subpoenaed to produce the depositions, which may be read in evidence before the grand jury. In re one of the justices for the county of Bedford, 1 Chit. Rep. 627. In this case, on a motion for a rule to show cause why a writ of mandamus should not be issued, directed to a magistrate for the county of Bedford, commanding him to produce certain depositions taken before him on a charge of felony, in order to enable the party against whom the complaint was made to institute a prosecution against the deponents for perjury-Abbott, C. J. said, "This is an application completely without precedent; and as no case is cited in support of it, I see no reason why we should assume a power which it does not appear the law has afforded us, I am not aware of any thing at all analogous to such a motion. We have no power to issue a mandamus to a magistrate for any such purpose as that stated at the bar.”—Bayley, J. "You may subpoena the magistrate before the grand jury; and from hearing the depositions taken before him read, the grand jury may make a presentment." Rule refused. But in the case of R. v. Smith, 1 Stra. 126, a rule was granted, after time had been taken to deliberate, to compel a justice of the peace to cause an examination taken before him to be produced at the trial, and to give the party a copy in the mean time: and in Welch v. Richards, Barnes, 468, in an action for a malicious prosecution, a rule was obtained for the committing magistrate to show cause why he should not permit the plaintiff to inspect and take a copy of the information at his own expense, and cause the original information to be produced at the trial; and after cause shown, the rule was made absolute on the authority of the case in 1 Stra. 126. And where the plaintiff, in an action on a deed, has had the same taken from him under a warrant against him for a felony, the Court will,,on an affidavit of demand upon the magistrate and constable, direct them to give plaintiff a copy to declare on, and to produce the deed on the trial, the plaintiff undertaking to pay the expenses. Harris v. Aldrit, 2 Chit. Rep. 229. XIII. Certifying the Examinations, &c. aminations, &c. The 7 Geo. IV., c. 64, s. 2 & 3, ante, 97, requires the justice to subscribe Certifying exthe examinations, information, and recognizances, and deliver, or cause to be delivered, the same to the proper officer of the Court in which the trial is to be before or at the opening of the Court. Formerly the justice used personally to attend with the informations, in order to certify them; but now they are handed over by the clerk of the justices to the clerk of the peace or assizes. General form of oath to be admi nistered to wit nesses. (a) Deposition of a witness. XIV. Forms. No. 1. "You shall true answer make to all such questions as shall be demunded of you; so help you God." this No. 2. The examination of C. D., of in the year of our Lord , labourer, taken on oath to wit. day of before me, J. P., one of [or us, &c.] His Majesty's justices of the peace in and for the county aforesaid, in the presence and Learing of A. B., charged this day before me [or us], the said justice, for that he the said A. B., on, &c., at, &c., [describing the offence generally, as in a warrant or commitment. See the various titles of offences]. Which said C. D. saith as follows: I saw, &c. [stating the deposition of the witness, as nearly as possible in the very words he uses. See ante, 98. Then let him subscribe his name to the deposition, if he will do so; but such subscription is not absolutely requisite. Ante, 97]. Taken before me [or us], the day and year above mentioned. J. P. to wit. day of The examination of A. B., of in the year of our Lord , labourer, taken this before me, J. P. esquire, one of [or us, &c.], His Majesty's justices of the peace in and for the county aforesaid: The said A. B. being charged before me [or us], the said justice, on the oath of C. D., of, &c. for that he the said A. B., on, &c., at, &c., [describing the offence generally, as in a warrant or commitment]: Upon his examination now taken before me, saith, &c. [stating what the accused says, as nearly as possible in the very words he uses.] If the accused be silent, or declines saying any thing in his behalf, the examination, after stating the offence with which the party is charged, as above, should proceed thus: "And the witnesses against the said A. B., being examined in his presence, the said A. B. is now asked by me if he wish to say any thing in his own behalf; whereupon the said A. B. answereth nothing, or saith," [stating what the accused may say, as nearly as possible in the very words he uses. Get him to sign the examination, if he will do so.] Taken before me, the day and year above mentioned. No. 4. J. P. Summons of a witness. (b) To the constable of Whereas information hath been made before me, J. P., esquire, one of His Majesty's justices of the peace for the said county, that A. D., late of in the county aforesaid, on, &c., at, &c., [describing the offence generally, as in a warrant or commitment]: and that C. D., of, &c. is a material witness to be examined concerning the same: These are therefore to require you to summon the said C. D. to appear before me, at in the said county, on the day of noon of the same day, to testify his knowledge concerning the premises. Herein fail you not. Given under my hand and seal, the in the year of our Lord No. 5. FORMS. further examina tion. (a) J. P., esquire, one of His Majesty's justices of the peace for the said Commitment for county, to the constable of in the said county, and to the keeper of the [common gaol] at in the said county: These are to command you the said constable, in His said Majesty's name, forthwith to convey and deliver into the custody of the said keeper of the said common gaol the body of A. B., charged this day before me, the said justice, on the oath of C. D., on suspicion that he the said A. B. on, &c., at, &c., [describing the offence generally, as in the warrant for apprehension]: but inasmuch as E. F., a material and necessary witness against the said A. B., resides at a distance of miles from the said dwelling-house of the said C. D., [or as the case may be, and he the said C. D. hath not been able to procure the attendance E. F., but will use his best endeavour to do so on the you the said keeper are hereby required to receive the said A. B. into your custody in the said common gaol until next, the day of you are hereby required to bring the said A. B. before me at county, or before such others of His Majesty's justices of the peace for the said county as shall be then and there present, to be re-examined and further dealt with according to law. Herein fail you not. Given under my hand and seal, the day of of the said instant, when in the year of our Lord J. P. No. 6. County of Be it remembered, that on the year of the reign of A. I., of in the said county, yeoman, to wit. personally came before me, H.C., doctor of laws, one of the justices of our said Lord the King, assigned to keep the peace in and for the said county, and acknowledged himself to owe to our said Lord the King the sum of and lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said Lord the King, his heirs and successors, if he the said A. I. shall fail in the condition indorsed. H. C. of good The condition of the within-written recognizance is such, that whereas one A. O., late of was this present day brought before the justice within-mentioned by the within-bounden A. I., and was by him charged with [the felonious taking and carrying away of the goods of him the said A. I.], and thereupon was committed by the said justice to the common gaol in and for the said county; if, therefore, he the said Å. I. shall and do, at the next [general] quarter sessions of the peace [or, gaol delivery], to be holden in and for the said county, prefer, or cause to be preferred, one bill of indictment of the said [felony] against the said A. O., and shall then also give evidence there concerning the same, as well to the jurors that shall then inquire of the said [felony], as also to them that shall pass upon the trial of the said A. O., that then the said recognizance to be void, or else to stand in full force for the King. in the of the reign of in the said county, yeoman, to wit. did come before me, H. C., doctor of laws, one of the justices of our said Lord the King, assigned to keep the peace in and for the said county, and did acknowledge himself to owe to our said Lord the King the sum of [ten] pounds of lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said Lord the King, his heirs and successors, if he the said A. W. shall fail in the condition hereon indorsed [or, underwritten, as the case may be.] The condition of the within-written [or, above-written] recognizance is such, (a) See ante, 99, 100, as to this. FORMS. Examinations by Justices before Trial. [XIV. that if the within [or, above] bounden A. W. shall personally appear at the next Exceptions, Bill of, see ante, 92. Statement of, in Information and Conviction, see Conviction, Vol. I. p. 824. Statement of, in Indictment, see Endictment, Vol. III. 346. Proof of, see ante, 21. Exchequer Bills. See Larceny, Vol. III. 569., Forgery, Vol. II. p. 833. Excise and Customs.* THE Customs are duties payable on merchandize brought into or carried out of the country, or carried coast wise. The Excise duties, on the other hand, are an inland imposition, and are imposed sometimes on the manufacturer or dealer, sometimes on the commodity itself, or the retail sale. The Custom duties, which are paid on the first introduction of goods info the country, are liable to objection on that account, as the merchant is obliged to charge in the price of the commodity, not only the tax itself, but also a commercial profit on such tax, and the advance of his money in paying the same; and when the goods have to pass through the hands of various dealers, the accumulated profits on the tax may exceed the amount of the tax itself. (a) The Excise duties fall more lightly on the consumer than Custom duties to the same amount, because they are generally paid in a much later stage. The expense of collecting them is also easier: but the frauds to which this branch of the revenue is exposed have occasioned it to be protected by provisions which some have considered too rigorous and inquisitorial for the temper of a free nation. The frauds that might be committed, unless a strict watch was kept, have made it necessary to give the Excise-officers a power to enter and search the houses of persons who deal in excisable commodities, at any hour of the day, and, in many cases, of the night; and the proceedings for a transgression against the law are so summary and expeditious, that a person may be convicted within a very short time in a very large penalty, by two commissioners or justices of the peace, to the total exclusion of the trial by jury and disregard The regulations of the Excise, however, are not without advantages ulterior to the production of revenue, inasmuch as they are the means of preserving some species of goods from adulteration, which might be highly prejudicial to the health of the community. The imposition of heavy duties on articles which may be called the necessaries of life, as on salt, leather, soap, and candles, or on manufactured goods, is liable to objection on account of the influence of such a measure in depress of the common law. In all the former editions of this work, these subjects have been considered together, because the laws of the Customs and Excise, so far as justices, constables, and other peace officers are concerned, are in some measure connected and interwoven with each other; and though a better arrangement might be adopted, the editor of this edition thinks it is more convenient to adhere to the same order. For the history and particulars of the laws of the Customs and Excise antecedent to the recent enactments, and for the decisions thereon, many of which are applicable to the existing law, see 3 Chitty's Commercial Law, 690 to 847; Tucker Customs and (a) Tucker on Trade, 38, 124. But the method of bonding and warehousing goods has, in a great measure, removed this objection. |